Citation Nr: 0737004
Decision Date: 11/26/07 Archive Date: 12/06/07
DOCKET NO. 05-27 528 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Togus,
Maine
THE ISSUE
Entitlement to service connection for right ear hearing loss
disability.
REPRESENTATION
Appellant represented by: Maine Veterans' Services
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B. Adams, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1961 to
September 1964.
This case comes before the Board of Veterans' Appeals (Board)
on appeal of a January 2005 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Togus,
Maine.
The veteran testified at a hearing before a Decisision Review
Officer of the RO in November 2005. A transcript of the
hearing is of record.
FINDING OF FACT
The veteran's right ear hearing loss disability was not
present in service or within one year after his discharge
from service and is not etiologically related to service.
CONCLUSION OF LAW
Right ear hearing loss disability was not incurred in or
aggravated by active duty, and its incurrence or aggravation
during active duty may not be presumed. 38 U.S.C.A. §§ 1101,
1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303,
3.307, 3.309, 3.385 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 &
Supp. 2006), and the pertinent implementing regulation,
codified at 38 C.F.R. § 3.159 (2007), provide that VA will
assist a claimant in obtaining evidence necessary to
substantiate a claim but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. They also require VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant. In addition, VA must also request
that the veteran provide any evidence in the claimant's
possession that pertains to the claim.
The Board also notes that the United States Court of Appeals
for Veterans Claims (Court) has held that the plain language
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to
a claimant pursuant to the VCAA be provided "at the time"
that, or "immediately after," VA receives a complete or
substantially complete application for VA-administered
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119
(2004). The Court further held that VA failed to demonstrate
that "lack of such a pre-AOJ-decision notice was not
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as
amended by the Veterans Benefits Act of 2002, Pub. L. No.
107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n
making the determinations under [section 7261(a)], the Court
shall...take due account of the rule of prejudicial error')."
Id. at 121.
The timing requirement enunciated in Pelegrini applies
equally to the initial-disability-rating and effective-date
elements of a service-connection claim. Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
The record reflects that the RO provided the veteran with the
notice required under the VCAA, to include notice that he
should submit any pertinent evidence in his possession, by
letter mailed in October 2004, prior to its initial
adjudication of the claim. Although the veteran was not
provided notice of the type of evidence necessary to
establish a disability rating or effective date for service
connection for right ear hearing loss disability until March
2006, after the initial adjudication of the claim, the Board
finds that there is no prejudice to the veteran in proceeding
with the issuance of a final decision. See Bernard v. Brown,
4 Vet. App. 384, 394 (1993). As explained below, the Board
has determined that service connection is not warranted for
right ear hearing loss disability. Consequently, no
disability rating or effective date will be assigned, so the
failure to provide timely notice with respect to those
elements of the claim is no more than harmless error.
The Board also notes that the veteran has been afforded an
appropriate VA examination and that service medical records
and pertinent VA medical records have been obtained. Neither
the veteran nor his representative has identified any
outstanding evidence, to include medical records, that could
be obtained to substantiate the claim. The Board is also
unaware of any such outstanding evidence. Therefore, the
Board is satisfied that RO has complied with the duty to
assist requirements of the VCAA and the pertinent
implementing regulation.
In sum, the Board is satisfied that any procedural errors in
the RO's development and consideration of the claim were
insignificant and non-prejudicial to the veteran.
Accordingly, the Board will address the merits of the claim.
Legal Criteria
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131. Service
connection may be granted for any disease initially diagnosed
after service, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Direct service connection may not be granted without medical
evidence of a current disability; medical or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between the claimed in-service disease or injury and
the present disease or injury. See Caluza v. Brown, 7 Vet.
App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).
For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, or 4000 Hertz is 40 decibels or greater; or when
the auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
Where a veteran served for at least 90 days during a period
of war or after December 31, 1946, and manifests organic
disease of the nervous system to a degree of 10 percent
within one year from the date of termination of such service,
such disease shall be presumed to have been incurred or
aggravated in service, even though there is no evidence of
such disease during the period of service. 38 U.S.C.A.
§§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.
Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary. The Secretary
shall consider all information and lay and medical evidence
of record in a case before the Secretary with respect to
benefits under laws administered by the Secretary. When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §
3.102 (2007); see also Gilbert v. Derwinski, 1 Vet. App. 49,
53 (1990). To deny a claim on its merits, the evidence must
preponderate against the claim. Alemany v. Brown, 9 Vet.
App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Analysis
Service medical records show that the veteran made no
complaint and received no medical treatment related to his
ears or hearing during service. A July 1964 report of
medical examination performed prior to discharge shows that
the veteran's hearing and ears were normal. On physical
profile evaluation (PULHES), the veteran was assigned the
highest functional rating for hearing and ears.
The first diagnosis of right ear hearing loss in the
veteran's post-service medical records was rendered at a July
2005 VA audiological examination. That examination yielded
the following puretone thresholds:
Hertz (Hz) |500 |1000 |2000 |3000 |4000
|
Right |50 |50 |65 |70 |65 |
Speech discrimination was measured at 70 percent for the
right ear. The examiner diagnosed the veteran with mild to
moderately-severe hearing loss in the right ear. She noted,
however, that the speech discrimination score was
inconsistent with the puretone threshold findings and that
this inconsistency suggested functional overlay.
The examiner was asked to state an opinion with respect to
medical nexus. She explained that despite the inconclusive
test results, it was less than likely that the veteran's
right ear hearing loss was related to military noise
exposure. In support of her opinion, the examiner noted that
hearing loss due to noise exposure was not known to be
progressive and that the veteran's separation examination
revealed his right ear hearing to be within normal limits.
There is no medical opinion of record that refutes the VA
examiner's opinion. The veteran did submit a December 2005
lay statement from his former spouse, who stated that she
believes the veteran's right ear hearing loss is related to
his experience as a member of a competitive Army rifle team.
This opinion, however, does not constitute competent medical
nexus evidence because it is offered by a lay person, who has
no medical training and is not qualified to render an opinion
concerning medical causation. See Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992).
The veteran has attempted to support his claim for service
connection by showing that his right ear hearing loss existed
prior to the July 2005 diagnosis. At a local hearing held in
November 2005, the veteran testified that two private
physicians informed him that they suspected he had hearing
problems in the early and mid-1980s. He acknowledged,
however, that neither of these doctors formally evaluated his
hearing or rendered a diagnosis. The veteran also testified
that his mother noticed his hearing problems shortly after
his discharge from service and submitted a December 2005 lay
statement from his current spouse, who stated that she first
observed his hearing loss in 1989. However, these statements
cannot be used to establish an earlier diagnosis date since
they were rendered by lay persons, who, as noted above, are
unqualified to render medical opinions. Moreover, none of
these statements address the veteran's hearing disability
according to the VA standards listed in 38 C.F.R. § 3.385
and, therefore, cannot be used to establish the presence of
hearing loss disability for VA purposes.
While the veteran clearly has a current right ear hearing
loss disability as defined by VA standards, there is no
competent medical evidence of such a disability until 2005,
more than four decades after service. As noted above, there
is of record no medical evidence that could be used to
establish an earlier diagnosis of right ear hearing loss or
that contradicts the VA examiner's opinion that it is less
than likely that the veteran's right ear hearing loss is the
result of any military noise exposure. Accordingly, the
Board concludes that a preponderance of the evidence weighs
against this claim and that service connection for right ear
hearing loss disability is not warranted.
ORDER
Service connection for right ear hearing loss disability is
denied.
____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs